Frost Protection Regulation

RUSSIAN RIVER WATERSHED

On September 20, 2011 the State Water Board adopted a Frost Protection Regulation for the Russian River watershed. The regulation provides that, with the exception of diversions upstream of Warm Springs Dam in Sonoma County or Coyote Dam in Mendocino County, any diversion of water from the Russian River stream system, including the pumping of hydraulically connected groundwater, for purposes of frost protection from March 15 through May 15, shall be diverted in accordance with a board-approved Water Demand Management Program (WDMP). The diversion of water in violation of this regulation would be an unreasonable method of diversion and use and a violation of Water Code section 100. The regulation requires any WDMP to manage the instantaneous demand on the Russian River stream system during frost events to prevent stranding and mortality of salmonids.

The Russian River Frost Protection Regulation became effective on December 29, 2011. In January 2012, two lawsuits were filed against the regulation delaying implementation until October 1, 2014, when the California Supreme Court declined to review Light v. State Water Resources Control Bd. (2014) 226 Cal.App.4th 1463. With the legal challenges to the regulation resolved, the State Water Board is now implementing the Regulation for the 2015 frost protection season. Diversions for frost protection are subject to the Regulation beginning March 15, 2015.

The State Water Board is implementing the Regulation using a phased approach similar to approach outlined in State Water Board Resolution No. 2011-0047. This phased approach will allow for timely yet reasonable full implementation of the Regulation. State Water Board staff will work with growers in the Russian River watershed that make good-faith efforts to comply with the Regulation by developing and implementing a Water Demand Management Program (WDMP).

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Water Demand Management Programs (WDMP)

The Water Demand Management Program (WDMP) should be administered by an individual or governing body capable of ensuring that the goals of the program will be met. In addition, the WDMP is required to include the following: (1) an inventory of the frost diversion systems within the area subject to the program, (2) a stream stage monitoring program, (3) an assessment of the potential risk of stranding mortality due to frost diversions, (4) development and implementation of a corrective action plan if necessary to prevent stranding mortality, and (5) annual reporting of program data, activities, and results.

Resolution No. 2011-0047, by which the Board adopted the Regulation, allows for phased-in implementation of the Regulation and specifies that an acceptable initial WDMP must include a schedule for completing the frost inventory, developing and implementing a stream stage-monitoring program, and conducting a risk assessment. An acceptable schedule should identify milestone dates for: collection of required inventory information; a determination of the number, type, and location of stream gages; a determination of the stream stage that should be maintained at each gage; installation of stream gages; and conducting a risk assessment of cumulative frost diversions affecting stream stage. Recently submitted WDMPs and the State Water Board's responses are posted below.

Approved Initial WDMP's for 2015

The following Initial WDMPs have been approved by the State Water Board for diversions for frost protection in 2015 between March 15 and May 15. Growers interested in joining these approved WDMPs should contact the governing bodies identified:

Russian River Watershed Conservation Council - For diversions in Sonoma County

In April 2009 the State Water Resources Control Board (State Water Board or Board) held a workshop to receive information regarding the need for and
the effect of water diversions for purposes of frost protection of crops in Mendocino and Sonoma Counties. The workshop was held in response to a letter
the Deputy Director for Water Rights received on February 27, 2009 from the Santa Rosa Office of the National Oceanic and Atmospheric Administration
Fisheries Service (NOAA Fisheries Service) expressing concern over the threat to federally threatened and endangered salmonids of frost protection irrigation
by vineyard owners in the Russian River watershed. In the letter, NOAA Fisheries Service requested that the State Water Board take immediate action to
protect salmonids in the Russian River watershed, e.g., by implementing emergency regulations. At follow-up workshops in November 2009 and January 2010,
the State Water Board received information on the status of Russian River salmonids, the impact of water diversions, voluntary actions to address impacts,
and grower issues and options related to frost events.

At the January 2010 workshop the Board instructed staff to pursue regulations though the formal rulemaking process. Staff presented draft regulations at the January 19, 2010 workshop, which were revised for discussion at the March 30, 2010 State Water Board meeting. On April 6, 2011, prior to the initiation of the formal rulemaking process, the State Water Board held another workshop and made available for public comment a revised draft of the regulation and draft rulemaking documents.

On May 20, 2011, the State Water Board initiated the formal rulemaking process, and made available for public comment revised drafts of the proposed regulation and Initial Statement of Reasons. The State Water Board also made available a Draft Environmental Impact Report for the proposed regulation in order to comply with the California Environmental Quality Act. The written comment deadline was noon on July 5, 2011. On September 1, 2011, the State Water Board posted revisions to the draft documents and new documents for the rulemaking record. The State Water Board accepted written comments on the revisions and new material until Noon on September 16, 2011. The State Water Board adopted the proposed regulation and certified the Environmental Impact Report during a hearing held on September 20, 2011. The Final Rulemaking Package was filed with the Office of Administrative Law (OAL) on November 15, 2011. At the request of OAL, the State Water Board made non-substantive, largely typographical corrections to the text of the regulation. OAL approved the regulation on December 29, 2011. The regulation became effective on December 29, 2011, when OAL filed it with the Secretary of State.

A business or person submitting a comment to a proposed regulation or proposed amendment or repeal of a regulation or any person who specifically requests it has the right to request a copy of the Final Statement of Reasons (FSOR). Upon its completion, the FSOR will be available and copies may be requested from State Water Board contact persons, or may be obtained in electronic form from this webpage.

Notice of Public Workshop - A revised draft of a proposed regulation that would affect water diversions for purposes of frost protection in Mendocino and Sonoma Counties, along with associated draft rulemaking documents, have been made available for public comment prior to the initiation of the formal rulemaking process. The State Water Resources Control Board will hold a public workshop on April 6, 2011 to hear comments on the draft documents.

March 15, 2010 - Revised Notice of Russian River Frost Protection Working Group Meetings - The State Water Resources Control Board has issued this revised notice containing a change in room location for the meetings originally scheduled for the Coastal Hearing Room. The meeting on Thursday, March 18, will now be held in Training Room 2 East/West and the meeting for Tuesday, March 30, will be held in Conference Room 1410

January 19, 2010, State Water Board's Agenda Item #7 Fact Sheet
Workshop to receive a recommendation from staff concerning Board action to address the effects on salmonids of water diversion practices for frost protection of crops in the Russian River watershed in Mendocino and Sonoma Counties.

November 18, 2009 - State Water Board Workshop - Presentations by Parties

Winegrape Growers, Sonoma County Farm Bureau, Mendocino County Farm Bureau, Russian River Flood Control and Water Conservation Improvement District and California Land Stewardship Institute - "Russian River Frost Program"

October 27, 2009 - Notice of Public Workshop - The State Water Resources Control Board held a public workshop on November 18, 2009 to consider recommendations for actions regarding water diversions for purposes of frost protection in Mendocino and Sonoma Counties.

April 7, 2009 - State Water Board Workshop
The State Water Board held a workshop to receive information regarding the need for and the effect of water diversions for purposes of frost protection of crops.

The Need for and the Effect of Water Diversions for Purposes of Frost Protection in Mendocino and Sonoma Counties Grower Comments, Concerns, and Perspectives - David Koball, Vineyard Director - Mendocino County Fetzer/Bonterra Vineyards - 2nd Vice President - Mendocino County Farm Bureau